v. Mackey
Filed
1/10/13 P. v. Mackey CA5
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
DVANTE JAVAR
MACKEY,
Defendant and Appellant.
F063290
(Super. Ct. No. F10904544)
APPEAL
from a judgment of the Superior Court of
Kim
Malcheski, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen
and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Following a jury
trial, Dvante Javar Mackey (appellant) was convicted of
findings that he acted in concert with two other persons (§ 213, subd.
(a)(1)(A)) and personally used a firearm (§ 12022.53, subd. (b)) in the
commission of the offense. He was
sentenced to prison for 16 years. On
appeal, appellant contends: (1) the
prosecutor committed misconduct by asking appellant whether a sheriff’s deputy
was lying in his testimony; (2) the trial court erred under Evidence Code
section 352 by admitting evidence that appellant’s girlfriend “flashed†him
during a jail visit; and (3) the cumulative prejudice of the errors compels
reversal of the judgment. We affirm.
In
the early morning hours of May 20, 2010, someone knocked on the back door
of a house in Clovis. The door was
opened by Kellie Bryant, a houseguest, who had herself just arrived and entered
the house through the same door.
Appellant quickly stepped inside, pointed a gun at Bryant’s head, and
threatened to kill her if she did not give him $1,000 from the house. Bryant screamed, pushed appellant back out
the door, and locked it.
Appellant
kicked down the door and pointed his gun at Roger Luntz, the homeowner who had
just emerged from the master bedroom.
Appellant ordered Luntz to get down on the ground. Two more men entered the house through the
back door. One of them went into the
master bedroom, where Luntz’s wife was sleeping, and took her purse.
Appellant
followed Bryant to the living room and interrupted her attempt to call
911. He then grabbed Bryant’s purse and
ordered her to lie on the ground.
After the three
intruders left the house, sheriff’s deputies arrived and Bryant reported that
her purse had been stolen, along with several electronic devices, including her
iPhone.
By working with
Bryant’s wireless carrier, Fresno Sheriff’s Detective Michale Nulick was able
to trace her iPhone to someone who had purchased it on Craigslist on
May 20, 2010. The person who sold
the iPhone on Craigslist told Detective Nulick he purchased it from a
particular store.
Detective Nulick
went to the store and spoke to the owner, Hector Palacios. Palacios told Detective Nulick that he bought
the iPhone on May 20, 2010, from three men with whom he previously had
done business. He later identified
appellant as the person who sold him the iPhone.
Palacios
provided Detective Nulick with two phone numbers he had used to contact
appellant in the past. One of the
numbers was for a cell phone, which was registered to an address on West Pico
Street in Fresno.
On June 11,
2010, Detective Nulick arranged to have Palacios send appellant a text message
and ask if he had any more phones to sell.
Palacios reported that appellant sent an affirmative reply. About an hour later, Detective Nulick saw
three men leave the West Pico address in a green Mustang.
Detective Nulick
followed the Mustang to Palacios’s store and saw the three men enter the
store. Palacios shortly sent a text
message to Nulick identifying appellant as the person who sold him the iPhone.
Based on
Palacios’s description, Detective Nulick was able to identify appellant as the
driver of the Mustang. After the three
men left the store and drove away, the detective arranged to have the Mustang
stopped.
The traffic stop
was conducted by Fresno Sheriff’s Deputy James Dunn. Appellant told Deputy Dunn that he did not
have a driver’s license and that he had purchased the Mustang. When asked for his address and phone number,
appellant provided Deputy Dunn with the West Pico address and the cell phone
number associated with the address.
The defense
Appellant
presented an alibi defense, claiming he spent the entire night at the house of
Marisha Iverson, his girlfriend at the time.
Iverson testified that appellant arrived at her house around 5:00 or
6:00 p.m. on May 19, 2010, and left around 7:00 or 7:15 a.m. on
May 20, 2010. Iverson’s mother, a
registered nurse, testified that she saw appellant arrive at the house sometime
before she left for work at 6:30 p.m. on May 19, 2010, and she saw
him leaving the house around 7:30 a.m. on May 20, 2010, as she was
returning from work.
Regarding the
trip to Palacios’s store on June 11, 2010, appellant testified the Mustang
did not belong to him but belonged to someone he knew by the nickname of
“J-man.†Appellant denied ever
conducting any transactions with Palacios and claimed he was simply giving his
friends a ride to the cell phone store because he was the only one who knew how
to drive a stick shift. Appellant also
denied that he provided Deputy Dunn the cell phone number associated with the
West Pico address.
Misconduct
During cross-examination, appellant denied telling Deputy Dunn that
he had just purchased the Mustang. The
prosecutor then asked appellant, “Do you have any reason to believe that Deputy
Dunn had a reason to lie about something in this investigation?†After appellant answered no, the prosecutor
asked, “But if you didn’t say that, do you have any idea where he would have
got that?†After appellant gave a
nonresponsive answer describing his “shock[]†at reading the reports, the
prosecutor again asked, “Do you have any reason to believe that Deputy Dunn
would lie in this investigation?â€
if he—if he was asked to, well, you never know what people do. People do crazy things.†The prosecutor then asked, “But you don’t
have any information as to why Deputy Dunn would say something if it weren’t
true; correct?†to which appellant replied, “No, sir.â€
Based
on the above line of questioning, appellant now contends “the prosecutor
committed intentional misconduct when he repeatedly asked appellant if [D]eputy
Dunn had lied or fabricated evidence about their interaction in the
field.â€
Appellant’s
trial counsel did not object to any of the challenged questions on the basis of
prosecutorial misconduct. A defendant “must make a timely objection and
request an admonition to cure any harm†in order to preserve a claim of
prosecutorial misconduct. (
v. Brown (2003) 31 Cal.4th 518, 553; People
v. Hill (1998) 17 Cal.4th 800, 820.)
On appeal,
however, appellant has raised a claim of ineffective assistance of trial
counsel, based on the failure to object to the allegedly improper
questions. To demonstrate ineffective
assistance of counsel, appellant must show that his trial counsel’s
“representation fell below an objective standard of reasonableness†(
668, 688), and that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been differentâ€
(id. at p. 694). In light of the claim of ineffective
assistance of counsel, we will address appellant’s claim of prosecutorial
misconduct on its merits.
Appellant
relies on a line of federal authority that categorically holds “were they
lying†questions constitute misconduct.
(E.g., United States v. Sanchez
(9th Cir. 1999) 176 F.3d 1214; United
States v. Richter (2nd Cir. 1987) 826 F.2d 206.) “‘The courts in these cases explain that
these questions infringe on the jury’s right to make credibility determinations
[citations], or that the questions are misleading because they suggest that the
only explanation for the discrepancy between defendant’s testimony and the
other witness’ testimony is that one of them is lying [citations]. Moreover, the questions might be considered
misleading or calling for a conclusion in that they suggest that the defendant
can know what another witness was thinking.’
[Citation.]†(
Cal.App.4th 228, 239.)
The
California Supreme Court, in People v.
Chatman (2006) 38 Cal.4th 344 (Chatman),
declined to adopt this categorical approach.
should carefully scrutinize ‘were they lying’ questions in context. They should not be permitted when
argumentative, or when designed to elicit testimony that is irrelevant or
speculative. However, in its discretion,
a court may permit such questions if the witness to whom they are addressed has
personal knowledge that allows him to provide competent testimony that may
legitimately assist the trier of fact in resolving credibility questions.†(Id.
at p. 384.)
“If
a defendant has no relevant personal knowledge of the events, or of a reason
that a witness may be lying or mistaken, he might have no relevant testimony to
provide. No witness may give testimony
based on conjecture or speculation.
[Citation.] Such evidence is
irrelevant because it has no tendency in reason to resolve questions in
dispute. [Citation.]†(Chatman,
supra, 38 Cal.4th at
p. 382.) However, “[a] defendant
who is a percipient witness to the events at issue has personal knowledge
whether other witnesses who describe those events are testifying truthfully and
accurately. As a result, he might also
be able to provide insight on whether witnesses whose testimony differs from
his own are intentionally lying or are merely mistaken.†(Ibid.) That is particularly true if a defendant
knows these witnesses and knows of reasons why they might lie. (Ibid.)
Here,
while appellant did not know Deputy Dunn personally, appellant testified as a
percipient witness and had personal knowledge of events. (See Chatman,
supra, 38 Cal.4th at
p. 382.) The prosecutor was
entitled to question appellant about why his perception about what transpired
differed from the deputy’s. Appellant
denied that he told Deputy Dunn that he had purchased the Mustang, implicitly
charging that the deputy’s testimony could not be believed. “It was permissible for the prosecutor to
clarify [appellant’s] own position in this regard. It was also permissible to ask whether he
knew of facts that would show a witness’s testimony might be inaccurate or
mistaken, or whether he knew of any bias, interest, or motive for a witness to
be untruthful. The cross-examination was
legitimate inquiry to clarify [appellant’s] position. The questions sought to elicit testimony that
would properly assist the trier of fact in ascertaining whom to believe.†(Id.
at p. 383.) The prosecutor’s
questions here did not constitute misconduct.
section 352
At the outset of the defense case,
prosecution from introducing, for impeachment purposes, evidence that appellant
and Iverson were, in counsel’s words, “doing a little show and tell during a
visit in the jail.†The prosecutor
countered that evidence Iverson exposed her breasts to appellant (while he
exposed himself to her) was “relevant to the bias that this particular witness
would have for the defendant to show, at least at one point, her willingness to
break rules for the benefit of the defendant†and was “something that the jury
can use to help determine what her credibility may be and her motivation to
testify in a certain manner for the defendant.â€
The trial court ruled to allow the prosecution “to question [Iverson] as
to her conduct in violation of rules there are at the jail just on the issue of
bias†but excluded any evidence of appellant’s own misbehavior in jail. During direct examination, defense counsel
preemptively questioned Iverson on the subject and elicited testimony that the
police had asked her no longer to visit appellant in jail because she had
“flashed him†during a visit in March 2011.
Appellant now
challenges the trial court’s decision to admit the “highly prejudicial
evidence,†arguing it “should have been excluded pursuant to Evidence Code
section 352 as it was unduly prejudicial.â€
We find no abuse of discretion in the court’s decision.
Evidence
Code section 352 gives trial courts discretion to “exclude evidence if its
probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.†“We will not
disturb a trial court’s exercise of discretion under Evidence Code section 352
“except on a showing that the court
exercised its discretion in an arbitrary, capricious or patently absurd manner
that resulted in a manifest miscarriage of justice.â€â€™ [Citation.]â€
(People v. Jones (1998) 17
Cal.4th 279, 304.)
Appellant
fails to make such a showing. As the
prosecutor argued below, evidence of Iverson’s willingness to flout jail rules
by flashing appellant was relevant to show her bias towards appellant and the
issue of her credibility was important because she provided him with his alibi. On the other hand, the evidence was not
unduly prejudicial. The kind of evidence
that exceeds the bounds of a trial court’s discretion under Evidence Code
section 352 is evidence that “‘uniquely
tends to evoke an emotional bias
against the defendant’†and “‘has very little effect on the issues.’†(People
v. Karis (1988) 46 Cal.3d 612, 638, italics added.) The evidence here was brief and was limited
to Iverson’s misbehavior during the jail visit.
We do not believe the evidence was likely to invoke a unique emotional bias
against appellant. Nor was it likely to
confuse the jury, as appellant asserts in his
admit the evidence was not an abuse of discretion.
Having
rejected appellant’s individual claims of error, we necessarily reject his
claim of cumulative error.
The
judgment is affirmed.
_____________________
HILL,
P. J.
WE CONCUR:
_____________________
KANE, J.
_____________________
FRANSON, J.
name="_ftn1" title="">[1] Further
statutory references are to the Penal Code unless otherwise specified.
name="_ftn2" title="">[2] The trial
court overruled defense counsel’s objection to this question on the grounds it
lacked foundation and had been asked and answered.
